Refuse, Report, Resign? Well, Two Out of Three Ain’t Bad

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By William Wiley, August 19, 2020

We’ve been seeing a lot in the national media lately about civil servants as whistleblowers. Some groups hate them, some groups love them. Unfortunately, neither group always understands the federal whistleblower protection laws. That can work to the whistleblower’s significant disadvantage, especially when an apparently pro-whistleblower piece of advice can result in an unspoken disadvantage for the whistleblower.

Take the advice as to what a federal employee should do when ordered to do something illegal – say, hypothetically, to initiate a governmental action to serve a partisan political purpose rather than a valid governmental purpose. The lovely alliterative phrase I’ve heard recently is that when an illegal order is given, the employee should Refuse, Report, (and, if necessary) Resign. If you find yourself in the position of being ordered to take an illegal governmental action, and you’re considering whether to follow this Three-R recommendation, please think twice.

First, the good news. After Congress passed the Civil Service Reform Act of 1978, it subsequently amended the law to make it illegal for an agency to fire an employee for “refusing to obey an order that would require the individual to violate a law, rule, or regulation,” 5 USC 2302(b)(9)(D). We’ve previously written in this newsletter about the challenges a federal employee faces when confronted with an order requiring illegal activity.

Bottom line: If you are fired for refusing to obey an order, and the judge agrees with you that the order required you to do something illegal, then you get your job back (plus damages and the all-important attorney fees). So, the “Refuse” rationale makes sense legally.

As for the “Report” admonition, that’s protected activity, as well. We call that “whistleblowing.” Reprisal against a federal employee for blowing the whistle on governmental illegality has been protected (at least in part) since the Lloyd-LaFollette Act of 1912. The “Report” recommendation also makes sense if one is interested in stopping government malfeasance.

Which brings us to the third suggested action. When confronted with being ordered to take an illegal action, in addition to Refusing and Reporting the order, a federal employee should, if necessary, “Resign.” Lordy, that would feel good, wouldn’t it? Throw yourself on the hand grenade. Take one for the Gipper. It’s how heroes are made, isn’t it? Altruistic sacrifice to benefit the greater good. Mr. Spock would be proud (“The needs of the many outweigh the needs of the few” … that sort of thing).

If you as a whistleblower were to resign when confronted with an order to do something illegal, you might well find that a degree of fame comes along with your act of selflessness. The Washington Post might run a piece or two about your bravery (full disclosure, Jeff Bezos does not own the FELTG Newsletter), MSNBC might book you on Rachel or Lawrence, and some extreme-media outlets might interview every ex-boyfriend or girlfriend you ever dumped who still blames you for their inability to develop deep personal relationships.

And then … what? You’re out of a job. You’re hungry, the rent’s due, and baby needs a new pair of shoes. The publicity surrounding the circumstances under which you resigned from government has morphed into a degree of notoriety, at least in the eyes of certain prospective employers. You’re still convinced that you did the right thing by refusing the illegal order and reporting the government malfeasance, but you sure would like to pay your bills next month.

Fortunately, you have been to an FELTG class on employee rights and know that there are statutory protections for federal employees who are whistleblowers. However, when you read the law, you recognize that it specifically prohibits a federal agency from taking a personnel action because of an employee’s whistle blow. In your situation, the agency did not take an action. YOU took the action when you quit. Therefore, the refusal-to-obey protections of 5 USC 2302(b)(9)(D) do you little good.

Then, over a beer one night at your local watering hole, you come to find out that the guy next to you at the bar (six feet away, of course) is a federal employment lawyer. Hey, it IS Washington, DC after all. Try to find a bar that does NOT have at least one lawyer in it. He tells you that you may be the victim of a “constructive removal” and that you might have a case before something called the “US Merit Protection Systems Board.”

OK, he’s not a GREAT employment lawyer.

Anyway, long story short. You file an appeal with MSPB, and you lose. That’s because many years of caselaw, backed up by almost as many court decisions, have supported the two-part principle regarding claims of constructive removal. First, resignations are presumed to be voluntary and thereby non-appealable. Second, this presumption of voluntariness can be overcome by the individual on appeal if the appellant can prove that the resignation was the result of intolerable working conditions which could not be resolved otherwise.

Do we have intolerable working conditions in your situation? No, not necessarily. It all depends on how management responded to the refusal to obey the illegal order and the subsequent whistleblowing. Maybe your supervisors just blew it off. Or, maybe they got somebody else to do the job instead of trying to force you to obey.  Your being offended by the order itself, no matter how justified, standing alone, has never been found to constitute the creation of working conditions so intolerable as to justify your quitting; e.g., a constructive removal.

Instead of resigning, from a strictly defensible legal standpoint, the better R-option to consider would be to “Redress.” Not resist because you disagree with a particular policy of upper management, but rather resist any efforts on the part of management to fire you for refusing to obey that illegal order. You have significant redress rights as a federal civil servant if you are fired. Most federal employees who are reprised against for refusing to obey an illegal order can file a complaint with the US Office of Special Counsel. That agency can intervene in the removal process itself, perhaps obtaining a stay of the proposed removal before it is effectuated.

Separately from OSC, a fired career Title V employee almost always has a right to file an appeal with MSPB, with a discovery entitlement, a hearing and decision before an administrative judge, and three layers of appeals of that decision goes all the way to the Supremes.

This approach avoids the troublesome legal hurdles of the appeal of a claimed constructive removal. Instead, your claim is that the agency violated 5 USC 2302(b)(9)(D) when it fired you because you refused to obey an order that would have required you to commit an illegal act. That’s a significantly easier bar to clear than would be your burden to prove intolerable working conditions.

Personally, I have to admire someone who gives up a good federal job to put a public spotlight on significate government malfeasance. Unfortunately, my admiration does not put dinner on that former employee’s table. Plus, I’ll no doubt be onto the next political outrage within a few days while that individual is still trying to get through to the unemployment benefits office to file a claim. If you feel the need to Refuse and Report a supervisor’s order that is motivated by illegal purposes, you are doing what our whistleblower laws (and most of our society) expect you to do. However, when it comes to the third step, consider Redressing instead of Resigning. The same number of talk show producers will give you a call. You can stick a pin in that.

Watch this space. Wiley@FELTG.com

The Algorithms of Civil Service Law

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By William Wiley, July 15, 2020

For 20 years now, FELTG has been presenting teaching the how-to of civil service law. We start with the theory and the law, and then share the steps, tips, and tricks of applying the law. You leave a FELTG seminar with not only an understanding of the legal principles and requirements, but also the details of exactly how to do things, such as what to wear when negotiating, where to put the commas and periods in a disciplinary document, and when to offer a poorly performing employee the chance to accept a voluntary demotion.

Sometimes we have called what we teach strategies. Other times we talk about checklists or recipes. Whatever description we use, the objective is to point out that the best way to approach this business is by following certain pre-determined steps rather than by trying to reason through every situation every time. We’ve had the current fundamental civil service law for over 40 years. Most workplace situations have come up before, and to one degree or another, someone already has figured out how to handle them legally and efficiently. We learn from these prior successes and mistakes by reading case decisions, then incorporating those lessons into what we teach at FELTG.

Since your Most Humble Author has taken senior status with FELTG, I now have more spare time. One of the things Ihave done with that luxury, mainly to impress my whiz-kid grandson, is to learn how to solve a Rubik’s cube. Anyone can do it. There are how-to videos online that demonstrate the steps to resolution. While involved in this stimulating project, I have learned three important lessons:

  1. You can’t just peel off the little stickers and rearrange them so that the sides are all the same color.
  2. No human wi
    th an IQ less than 165 has any hope of figuring out how to solve the darned thing.
  3. The only practical approach is to learn the solution steps figured out by someone who has gone before, then apply those steps in a very particular order. The smart kids call each of these steps an “algorithm.”

An algorithm, for all you Luddites out there, is simply a step-by-step procedure for solving a logic problem. The Google tells us that a good everyday example of an algorithm is a recipe. You use an algorithm to go from a state of chaos (e.g., a kitchen full of cooking supplies) to a predefined outcome (e.g., a pot of gumbo). An algorithm often is made up of several smaller algorithms (e.g., first, you make a roux) that eventually take us to the desired outcome. If you try to figure it all out on your own, or start taking un-algorithmic steps along the way, you stand a good chance of messing things up big time.

As I learned the algorithms for solving a Rubik’s cube, it dawned on me that what FELTG does in our seminars is to try to teach class participants the algorithms of civil service law practice. We learned the steps in the algorithms we teach by evaluating thousands and thousands of legal decisions from MSPB, FLRA, and EEOC – as well as from their reviewing courts – to tease out the tricks and tips of our business. We learn when practitioners make mistakes just as much as when practitioners do something correctly. By putting all this legal history into context, we try to demonstrate the safest, most efficient, legally-defensible strategies for dealing with problem employees while simultaneously honoring employee rights. Comply with the FELTG civil service law algorithms and we can guarantee that you will be successful. Start playing around with other approaches, or tweaking an algorithm in some manner that we don’t recommend, and you run the risk of making a HUGE mistake.

With that said, let’s take a look at a couple of semi-recent court decisions that reinforce several elements of the algorithms FELTG teaches relative to taking a disciplinary action against a federal employee. There’s no new law in these two decisions. In fact, they rely on principles we’ve been presenting since our very beginning. However, we feel the need to emphasize them because too many supposed “specialists” in our business don’t take the time to learn from history, to apply the algorithms, and instead try to figure out things for themselves. In no particular order, here are three FELTG-algorithm elements for your consideration:

Charges must be specific:  When proposing to take an adverse action against an employee for disciplinary reasons, the employee’s supervisor issues a Proposal Notice to the employee. That notice should contain the “specific reasons” for the proposal, i.e., a description of the misconduct specific enough that the employee can defend himself should he choose to respond to the proposal. That description is usually labeled as a “Charge” and the Charge is often accompanied by one or more “Specifications” that give the details of the misconduct. If the supervisor crafts a Charge that is vague, the employee’s due process rights have been violated, and on appeal the adverse action will be reversed.

In a recent case bringing home this important part of the adverse action algorithm, the agency crafted the Charge as, “Possible misuse of protected information available to you as an EEO counselor.” The information that was supposedly misused was not specified. The manner in which it was alleged to have been misused was not spelled out. On appeal, the court had no problem at all in deciding that this Charge was “certainly” too vague to provide the specificity demanded by due process. “The employee must be given enough information to enable him or her to make a meaningful response to the agency’s proposed [adverse action].”

Were this aspect of the case controlling of the outcome, the court would have ordered the removal set aside and the appellant reinstated with backpay. Fortunately for the agency, because it’s employee relations practitioners properly adopted another aspect of the FELTG adverse action algorithm, the removal was affirmed. See below:

Supporting documentation should be attached to the proposal notice: The law says that when proposing an adverse action, an agency must provide the supporting documentation to the employee “upon the employee’s request.” 5 U.S.C. 7513(e). A number of agency counsel we have had in our seminars over the years tell us that their offices take a minimalistic approach to this requirement and require that the employee actually request the supporting material rather than the supervisor simply providing it along with the Proposal Notice. Well, if you are familiar with the caselaw, you know that waiting for the employee to request the information is asking for trouble, and a risk easily avoided by just giving the employee the materials as an attachment to the Proposal Notice.

There are a number of reasons for using a supporting-materials attachment that we discuss in our classes. One of those reasons came into play in the recent case that is the subject of the above section. The agency got itself into big trouble by mistakenly drafting a vague charge. However, the court upheld the removal in spite of the charge-framing mistake because the documents attached to the Proposal Notice provided the critical specificity lacking in the charge itself. Had the practitioner who drafted the Proposal Notice NOT attached those documents, as we have recommended in the FELTG algorithm since the cooling of the Earth, the court would have reversed the removal for a failure of due process. Willingham v. Navy, No. 2019-2031 (Fed. Cir., Apr. 8, 2020).

The Douglas factor penalty-selection analysis should be a separate document. In my years as Chief Counsel to the Chairman of MSPB, I participated in the drafting and adjudication of thousands of Board opinions. Based on that experience, I can say with a high degree of certainty that if a court or the Board bothers to mention a fact in its decision, it was important to the adjudicators who decided the case. The fact may not have been determinative of the outcome. However, if the adjudicator goes to the trouble of mentioning it, the fact most likely had an effect on the adjudicator’s consideration of the arguments and issues.

In a recent decision issued by the Federal Circuit, the court went to the trouble of noting that the Proposal Notice contained a separate, detailed “written Douglas factor analysis.” The court stated that this document  “provided [the appellant] with an opportunity to respond orally and in writing” to the Proposal Notice. To the inexperienced reader, this might seem like a routine throwaway line of legal chatter. However, it is significant to those who know the FELTG adverse action algorithm. That’s because a number of practitioners we’ve worked with over the years mistakenly believe that the Decision Notice rather than the Proposal Notice should contain the detailed Douglas analysis. Or, alternatively, an uninitiated HR specialist or attorney will cast the Douglas factor analysis as part of the body of the Proposal Notice, written in a run-on narrative format rather than the 12-part worksheet that we teach. Organize the factors in 1 through 12 format, keep the discussion of each factor specific to that particular factor, and do all of this on a separate document attached to the proposal. Your case may not be won or lost on this element, but doing so will tilt your case toward being more winnable than if you do it otherwise.

By the way, as a bonus, the court mentioned that the Proposal Notice got the employee out of the workplace immediately by placing her on paid leave during the 30-day notice period. That element, as well, is part of the FELTG algorithm. The practitioner who built this case for DoD did it the FELTG-Way© and we are honored if that is because of attendance in one of our programs. Noffke v. DoD, No. 2019-2183 (Fed. Cir. Apr. 8, 2020).

No matter how smart you are or the number of fancy degrees you have earned, please don’t try to figure this stuff out from scratch. Read the decisions, come to the FELTG classes, learn our algorithms. This is not always a commonsense business. Take advantage of those with more experience and you are most likely to come away from the appeal process with a winner rather than with a bill for back pay and a restored disgruntled employee.

Our next seminar that presents the adverse action (and unacceptable performance) algorithms will be offered virtually September 21-25. Hey, what the heck. Register for MSPB Law Week and who knows, maybe a FELTG instructor will demonstrate the Rubik’s Cube algorithm, just in case that you, too, have a smarty-pants teenager that needs to be taught that his parents are not quite as dimwitted as he might think. Wiley@FELTG.com

The Employee Who Can’t Perform the Essential Functions Because of a Disability

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By William Wiley, May 20, 2020

At FELTG, we love a good hypothetical Q & A, especially a hypothetical that comes from a nice student who has attended one of our classes. Here’s an example of just such an exchange:

Greetings, I am an attorney who recently attended MSPB Law Week training. One of the key features of the training was information on how to remove an employee based on performance, and how this method was under-utilized and which the mechanics of doing so were often misunderstood.

In my office, a regular hypothetical scenario that I encounter is cases where workers are unable to perform the essential functions of their position because of physical ailments or difficulties, and a reasonable accommodation will not work because of the nature of the work involved.

What do you think about removing these employees under a performance rubric, using 5 USC 4303? Is this doable? Removing these types of employees for “Inability to Perform the Essential Functions” does not seem to have the same legal authority that a performance removal does.

Any thoughts that you have on this subject would be greatly appreciated.

And here’s our FELTG response:

Very nice to hear from you. As for your question, you have a relatively common hypothetical situation and the legal road is clear cut. It is possible to remove someone for unacceptable performance if they have a medical condition that is preventing them from performing acceptably. However, doing so adds a step beyond what you have to do to remove the person for Medical Inability to Perform.

In other words, to an employee with a disability for Unacceptable Performance, you have to prove everything you would have to prove to fire that employee for Medical Inability PLUS you have to meet all the requirements of a 432 performance removal, with no additional benefit. I would suggest just going with a Medical Inability 752 removal to avoid the extra work and the extra risk in litigation.

To remove an employee for Medical Inability to Perform, you need to prove:

1 – The employee cannot perform at least one essential function of the position. This is usually easy to do because the employee often presents medical evidence from his own physician that says he cannot perform in some way. Even a backwoods lawyer such as myself stands a good chance of winning when the evidence comes from the employee’s own health care provider.

2 – The agency considered ways to accommodate the employee in his current job so that he can perform the essential functions; e.g., reasonable accommodation. In my experience, the supervisor can usually document this consideration with a one-hour documented evaluation of the work and the reason that the function is not subject to such modification.

3 – The agency, through testimony of its disability program coordinator or a staffing specialist, documents that it looked for vacant positions being recruited for within the agency for which the employee is professionally qualified and in which the employee can perform acceptably even with his medical limitations (including consideration of  whether the position can be modified to accommodate the employee’s disability). The job search should be initially at the employee’s current grade. If none are found at that level, then at lower grades.

Assuming the job search comes up empty, at this stage you can initiate a Medical Inability to Perform Removal. Were you to instead pursue an Unacceptable Performance removal, you’d still have to do all of the above to prove that you attempted to accommodate the employee’s disability PLUS you’d need to prove that you properly initiated an opportunity to demonstrate acceptable performance period (DP), that the supervisor met with the employee to assist him during the DP, that the employee indeed performed unacceptably during the DP, and that the agency’s performance plan was approved by OPM. There’s no reason to take the performance route when the medical inability route works just as well.

For more on this, you may want to consider enrolling in FELTG’s next virtual seminar that addresses medical issues like yours, Absence, Leave Abuse & Medical Issues Week, July 13-17. Good luck out there. Wiley@FELTG.com

Unintentional Outcomes of Two Recent Court Decisions

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By William Wiley, April 15, 2020

If you paid attention in civics class in the 10th grade, you probably remember a fundamental aspect of our country’s great legal system:

  • The legislative branch (Congress) decides what the rules should be in our society and then passes laws to implement those rules.
  • The judicial branch (the courts) then interpret those laws the way Congress wrote them, thereby clarifying any ambiguity in the laws.

Ideally, there is a better way. Once a governmental rule-maker creates a law, if there’s any subsequent ambiguity, we would be able to just go back to that rule-maker and ask what was really meant. We do that all the time in day-to-day life. If you’ve enjoyed happy hour a bit too much and accidently leave a $1000 tip on a $50 bar tab, the nice restaurant staff will call you the next day and say, “Did you really mean to do leave a $1000 tip?” (Don’t ask me how I know this.) In normal life, we clear up ambiguity by dealing with the source of the ambiguity.

Unfortunately, we can’t do that in government. The Congress that passed the unclear law probably no longer exists by the time the ambiguity arises. Therefore, we use the judicial branch to interpret the laws, based almost exclusively on the words of the law itself. If those words result in awkward outcomes, so be it. The role of a judge is not to make law, but to interpret it. The courts sometimes look to the intent of Congress when the laws were drafted, but those intentions are an educated guess at best. It’s the black-letter law that matters most.

A couple of decisions that produced arguably unintended outcomes, coincidentally decided the week after April Fool’s Day, recently landed in the field of federal civil service law:

Babb v. Wilkie, No. 18-882, U.S., April 6, 2020 – Federal law demands that personnel actions within the government be untainted by discriminatory motives, e.g., race, sex, age, etc. Courts have interpreted this prohibition to mean that the agency’s personnel action (for example, a termination) will be set aside, and the petitioning employee made whole (e.g. reinstated with back pay) if “but-for” the discriminatory characteristic, the agency would not have taken the personnel action. The but-for aspect of this requirement gives a level of defense to an agency when it would have removed the individual, even if its decision somehow involved one of the protected civil rights categories.

Yes, when the agency fired me, it was aware that I am a male. However, even though it considered my sex in making its removal decision, it still would have fired me because what I did was so seriously harmful. In other words, for me to be successful in my discrimination complaint challenging the removal, I have to prove that had I not been a male, the agency would NOT have fired me, e.g., but-for my sex. If I simply prove that my sex was a consideration, that’s not enough to get reinstated.

In Babb v. Wilkie, the Supreme Court carved out an exception to this principle. As the law that provides for protection from age discrimination reads a bit differently from the civil rights laws that prohibit discrimination based on race, religion, sex, etc., the Court held that if the employee proves that age was a factor in the decision to take the personnel action, the employee has proven that the agency engaged in prohibited discrimination, and is thereby entitled to a remedy. Importantly, though, unless the employee also can prove the but-for aspect, the remedy does NOT include reversal of the termination along with reinstatement and back pay. What exactly would be a proper remedy when age is a factor – but not determinative of the decision to remove – was left unresolved by the Court.

Bottom Line:  If the complainant can prove that one of the civil rights protected categories was a factor in the agency’s termination, but cannot prove that but-for his race, sex, religion, etc. he would not have been fired, he loses. However, if the employee proves that his age was a factor, he deserves a remedy, but not necessarily reinstatement unless he can meet the but-for standard.

So whaddya think? Did Congress actually intend this distinction, that complainants mistreated because of their age should receive a remedy when other individuals mistreated because of their race or sex do not receive a remedy? No, we don’t think so, either.

Kammunkun v. DoD, No. 2019-1374, Fed.  Cir., April 6, 2020 – As most every civil service law practitioner is aware, an employee who is fired often can challenge that removal in a variety of forums. For example, an employee who believes that a removal was reprisal for whistleblowing can file a complaint with the U.S. Office of Special Counsel (OSC). On the other hand, if the employee believes that pre-removal due process procedural rights were violated by the agency, the employee can file an appeal with a different agency, the U.S. Merit Systems Protection Board (MSPB). Bargaining unit employees who happen to hold positions covered by a collective bargaining agreement (union-management contract) have a third option. They can file a grievance under the CBA’s negotiated grievance procedure, with the right to receive a decision on the contested removal from an arbitrator.

In an attempt to attain administrative efficiency, Congress enacted 5 USC § 7121 (g)(3) to restrict a fired whistleblowing employee from pursuing redress through multiple forums — a complaint with OSC, an appeal with MSPB, and a grievance through  arbitration, all involving the same issue. The law says that the offended whistleblower “may elect not more than one” of the three available forums. Such limitations on avenues of redress are common. Individuals usually get just one bite at the apple, as they say.

In Kammunkun v. DoD, MSPB’s administrative judge dismissed the employee’s appeal. The Board’s regulation relied on by the AJ references the statute when declaring that the election of forum is made when the employee selects a remedy initially and cannot be changed later, 5 CFR 1209.2(d)(1). As Kammunkun had previously filed with OSC claiming whistleblower reprisal, she was not allowed to pursue a separate MSPB appeal on the merits of her removal. That outcome seems to make sense relative to the goal of adjudicatory efficiency. One bite, one forum.

When the Federal Circuit reviewed the law on which the regulation is based, it found the statute codified in that portion of Title V relative to labor relations. That’s because, in part, the intent of Congress was to prevent the individual from taking the same whistleblower reprisal claim to both the Board and to an arbitrator. Employees can pursue a grievance to arbitration only if they are in a collective bargaining unit. Therefore, codification in the labor relations section of the law makes sense, because only in that section is arbitration a relevant remedy.

The word “employee” has a very specific labor relations statutory definition, see 5 USC § 7103(a)(2). Many individuals who work for the federal government who think of themselves as federal employees are not “employees” for the purposes of labor relations. For example, by law, supervisors and managers are not allowed to participate in union affairs and are, therefore, excluded from the definition of an “employee” who would have collective bargaining rights. Makes sense because management officials should not be allowed to exert influence in internal union business where there often is an inherent conflict between the goals of the union and the goals of management.

Unfortunately, when applying this narrow definition of “employee” to the Board’s regulation intended to limit the number of forums in which a whistleblower can challenge a removal, the evidence reveals that the appellant in this case is, in fact, a supervisor. Therefore, she is excluded from the coverage of the regulation because she is not a labor-relations-defined “employee” and thereby not precluded from filing with both OSC and MSPB.

Bottom Line:  An individual who is fired from a position excluded from the labor-relations definition of “employee,” such as a supervisor, can file a whistleblower reprisal complaint with OSC and also file a merits appeal with MSPB. However, an individual who is fired from a position that satisfies the labor-relations definition of “employee” has to make a choice and cannot file in both forums.

So whaddya think? Did Congress actually intend this distinction, that supervisors should have greater redress rights than non-supervisors when claiming that a removal is motivated by the desire to reprise against a whistleblower? No, we don’t think so either. Wiley@FELTG.com

You Can’t Be Halfway Pregnant, and Informal Discipline is Not a Thing

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By Deborah Hopkins and William Wiley, February 19, 2020

Have you ever heard this saying: You can’t be halfway pregnant   — either you are, or you aren’t? There are a number of things in life that are all or nothing, with no halfway. Either it is, or it isn’t.

One of those things is discipline. An action taken against an employee who has committed misconduct in the federal workplace is either discipline, or it isn’t. There’s no halfway. I can’t tell you how many agency policies we have seen – yes, even recently — that list the items that constitute Formal Discipline, but then have other sections highlighted as “Informal Discipline” or “Other Discipline” or, perhaps most confusingly, just Discipline. Other policies list the steps of Progressive Discipline and include items such as Counseling and Oral Reprimands. That’s another mistake and isn’t legally accurate.

Here’s what we know about the requirements for an action to be considered discipline in the federal workplace, as laid out in Bolling v. Air Force, 9 MSPR 335 (Dec. 21, 1981):

Discipline must be in writing. If a supervisor yells and screams at an employee, calls the employee all kinds of nasty names , throws a chair, slams a door, threatens to fire the employee, or anything else along those lines, that supervisor might feel like she is disciplining the employee, and indeed, the employee may even feel disciplined from the sting of those words. However, under the law, the employee has not been disciplined. Those words and gestures matter not one iota under the law. If it isn’t in writing, it isn’t discipline. (It’s definitely bad management, but we’ll save that conversation for another article.)

Discipline must be grievable. As explained in Bolling, for an action to count as discipline, the employee must be “given an opportunity to dispute the action by having it reviewed, on merits, by an authority different from the one that took the action.” Just because an item is in writing, doesn’t make it grievable. An agency needs to look to its administrative grievance procedure or its union contract to see what types of written documents are grievable. Typically, items such as counseling memos, emails, letters of caution, or written expectations, do not meet these criteria and, therefore, are excluded from the definition of discipline.

The action must be made a matter of record. This requirement essentially means that there is official agency paperwork involved; the item belongs in the employee’s OPF. A lot of supervisors put notes and memos into the OPF, but the only things that truly belong there, for the purposes of counting as discipline, have an SF-50 attached. A reprimand does not have an SF-50 because it is not a pay action. However, it is commonly stored in the OPF in the temporary section (for those who remember OPFs before they were electronic, on the left side of the folder), where it does not remain in the file past its expiration date. A reprimand is considered discipline until its expiration date, because it meets all the legal requirements of discipline: It is written, grievable, and a matter of record.

All this brings us back to the confusion around “informal discipline,” or whatever your agency calls it. There is no accepted definition for informal discipline, and it does you more harm than help if you try to draw a distinction.

If a supervisor mistakenly issues three types of informal discipline against an employee, and on the fourth offense decides that it’s time for a removal under progressive discipline, she is going to be upset when she realizes the informal procedures she followed in her agency’s policy have carried exactly ZERO legal weight for the purposes of progressive discipline. At the very most, she might have some evidence for the Douglas factor on notice, but that’s about it. Here’s why this is important:

Efficiency: As we have taught in our FELTG seminars since the cooling of the Earth, the best practice is to do as little as required by law when dealing with a problem employee. The more you do, the longer it takes, the more you give the employee to grieve and complain about, and the greater your chances of making a mistake. If you create a category of actions unrecognized by law or otherwise unnecessary, you make it more difficult to efficiently correct behavior.

Confusion: If you create something called “informal discipline,” you confuse the poor front-line supervisor. When should the supervisor engage in informal discipline? Is there a requirement to use informal discipline before he uses the real thing? How is the employee supposed to view the administration of an informal disciplinary action? Most importantly, what is the judge or the arbitrator supposed to do with an informal discipline policy? Confusion does you no good when trying to manage workplace behavior.

Litigation: MSPB administrative judges closely review the removal of employees from federal service. If a judge discovers that you have mistakenly considered an act of “informal discipline” as a step in progressive discipline, then you stand a big fat chance of the removal being mitigated or even set aside on appeal. Litigation is hard. Don’t create the potential for mistakes that are unnecessary.

If you’re stuck with one of these policies and aren’t in a position to change it, don’t sweat it. Most of these policies do not require a supervisor to start with the informal before going the disciplinary route, so a supervisor should be free, to go right to the reprimand and skip the Letter of Whatever. Hopkins@FELTG.com

Not Commandments, but 5 Suggestions for Federal Employment Law Practitioners

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By William Wiley, February 4, 2020

A few years ago, someone sent me a list of “Ten Commandments” for those who do not subscribe to a particular religion. From a philosophical aspect, I found it interesting and applicable in a number of situations in life. With some paraphrasing, some apply to the field of federal employment law. Since we here at FELTG can’t command anyone to do anything, I thought I’d send these along as suggestions, reducing them to five, in the spirit of the thrifty thought that we teach in our legal writing programs:

1 – Be open-minded and willing to alter your beliefs when you are confronted with new evidence or argument.

2 – Strive to understand what is most likely to be the correct approach, rather than believing what you wish to be the correct approach.

3 – Legal research and formal training are the best ways to understand the field of federal employment law.

4 – Every supervisor has the right to decide the best course of action given a particular situation, as long as that decision is allowable by law.

5 – Many times in our business, there is no one right way to accomplish an objective.

I am reminded of these on occasion when someone in a class or by email asks me to explain something I’ve said in a training session. As our recurrent readers know, here at FELTG, we love getting your questions. It feels good to know that we might be contributing to a more-efficient civil service.

The best request for an explanation goes something like this:

“Hey, Bill. You are super-smart and very attractive. I get goose bumps when I read your insightful comments in an article. But I’m having a little trouble understanding your thought regarding blah, blah, blah, and wonder if you could explain it in more detail?”

“Sure, you poor under-educated newbie. I’d be delighted to impart to you a portion of the wisdom I have accumulated over the eons I have been in this business. Regarding blah, blah, blah, the answer which you seek is …”

“Wow, thanks, Bill! I’ve got it now.”

Frankly, I don’t necessarily believe that the questioner has “got it.” As far as I know, she may just be being nice, continuing to adhere to her misdirected view of the issue, but realizing that further exchange on the matter will do neither of us any good. Contrary to what some might believe, I don’t really care if anyone agrees with me. Here at FELTG, we don’t see it as our job to convince our participants of anything. Rather, it is our job to teach the conclusions we have reached based on many years of experience and study, and let you the student decide whether you agree or disagree. If you agree, fine. If you disagree, that’s fine, as well. Continue on your (misdirected) ways and let the consequences be what they may.

On rare occasions, however, we will bump into a participant who does see things this way, and who apparently sees it a responsibility to convince us that one of our instructors has said something that is wrong. Here’s an example of how one of those discussions goes:

[Me]: “In this situation, I’d suggest that you do X based on Y authority.”

[Participant]: “X is wrong. Z is the right answer because:

1 – I’ve always done Z.

2 – I was taught to do Z in a class I took years ago.

3 – I called my headquarters and they said that Z is the right answer.

4 – I heard a judge say that Z is correct.

5 – OPM regulations don’t say you can do X.

6 – I heard about a case in which the agency did X and it lost.

7 – I’ve been in this business as long as you have, and I’ve concluded that X is wrong.

8 – (And my favorite …) I don’t like X.”

Oh, poor participant. If only he would adopt the Five Suggestions, he might actually improve the performance of his craft. Be open-minded that there might be a better way to do things. Just because he’s always done something one way doesn’t mean it’s the only way. Look for more efficient approaches, not just the approach that he believes to be best. Consider new evidence, that being the conclusion of our instructor based on a lot of training and experience. Research the case law. Read the statute. And don’t rely on some case you read about in the newspaper.

Here are a few sample issues that have caused recent controversy, accompanied by our FELTG position on the matter:

  • An agency can unilaterally suspend an employee without taking away his pay and then count the suspension as progressive discipline.

FELTG: An agency and an employee can enter into an agreement where a “paper” suspension equates to a prior act of discipline for progressive discipline purposes. However, without such an agreement the law requires there to be a loss of pay for there to be a suspension cognizant under Chapter 75.

  • An agency needs a lot of proof of unacceptable performance to initiate a Performance Demonstration Period (DP, formerly a PIP).

FELTG: An agency has to reach a judgment that the employee’s performance is unacceptable before initiating a DP, but it will not have to prove the DP was warranted in an appeal to the Board of an eventual removal for DP failure.

  • Douglas factors should not be included in the proposal letter, only the decision letter.

FELTG: The employee is entitled to have the Douglas factors in the proposal letter according to the Douglas decision itself, and to satisfy due process.

If you disagree with any of these, that’s OK here. We’d just hope that you could learn to keep an open mind and do the research yourself for support of an alternative answer. If you’ll do that, we’ll keep answering your questions as best we can based on our experience and education. Join me and FELTG President Deborah Hopkins for a spirited week of discussion during the next MSPB Law Week March 9-13 in Washington, DC. Wiley@FELTG.com

Why a Supervisor Should Never Give a Summary Performance Rating of Unacceptable

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By William Wiley, January 14, 2020

Here’s an issue that comes up frequently in FELTG training and consulting. Supervisors who have a non-performing employee are sometimes advised by well-meaning attorneys and HR specialists to give the employee an Unacceptable performance rating at the same time (or just before) the supervisor issues a memo initiating a Demonstration Period (aka PIP). Well, that advice is not legally incorrect, but it’s still bad advice from a practical standpoint. A recent question presented to “Ask FELTG” highlights the problem and allows us the opportunity, once again, to explain why a supervisor should never give a Level 1 Unacceptable rating:

Dear FELTG,

We have received guidance from headquarters on assigning unacceptable performance ratings. Specifically, I wanted to make sure about the three times the guidance identifies we can assign an unacceptable rating of record, and then proceed with corresponding action under Chapter 43:

a. At the end of the rating period, if the employee was put on written notice of performing at an unacceptable level, we can assign an unacceptable rating. No Demonstration Period would be needed, and we can move forward with corresponding action under Chapter 43.

b. If the WIGI is denied when it is coming due.  We can assign an unacceptable rating. No Demonstration Period would be needed, and we would be able to move forward with corresponding action under Chapter 43.

c. At the end of the standard Demonstration Period process we are currently implementing.

So here’s our always insightful and entertaining FELTG response:

Dear Concerned Reader-

Your headquarters’ guidance speaks to three occasions in which a supervisor can assign an unacceptable rating. However, it is not necessary to assign an unacceptable rating to initiate a Demonstration Period (DP), to deny a WIGI, or at the end of a failed DP. All that’s required is that the supervisor reach a determination that the employee’s performance is unacceptable to initiate a DP. See 5 CFR 432.104.

We recommend that the supervisor never issue an unacceptable rating. Instead, when confronted with a non-performer, just initiate a DP. If you initiate the DP, the results of the DP are all that the employee can challenge. However, if you coincide the DP initiation with an unacceptable rating, the employee can independently challenge the rating through EEOC separately from what you are doing on the DP. A DP process resulting in removal is over in 60 days. The appeal of the removal to MSPB takes about 100 days for a judge’s decision. Unfortunately, a challenge to an unacceptable rating can take several years to be adjudicated through EEOC. If you give an unacceptable rating while dealing with a DP-failed poor performer, conceivably you could have a judge at EEOC set aside the unacceptable rating years into the future, thereby destroying the foundation of the DP removal, resulting in big buckets of backpay and a reinstated employee.

We’d suggest you not worry about the guidance from your HQ because you never need to issue an unacceptable rating. Just DP ’em. Best of luck- Wiley@FELTG.com

A New Way to Fire Bad Performers

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By William Wiley, November 13, 2019

Actually, it’s not new; it’s the way Congress intended it be done starting in 1978. Check out the following situation. As a legal or HR advisor, consider what you would advise.

Sally Supervisor tells you her problem: Ed Employee just can’t do his job. He’s a GS-14, and he routinely submits “finalized” reports with typos, missing data, and improper calculations. Over the past couple of months, she’s repeatedly had to return reports to Ed with many mistakes marked in red and instructions that they be corrected. Ed’s resubmissions sometimes still contain errors. She has reminded him that his mistakes are related to the very first critical element in his performance plan, and has told him several times that if his work does not improve, she will fire him.

We have taught for many years here at FELTG that the best advice in this hypothetical is to draft a Demonstration Period (DP, aka PIP or ODAP) Initiation Memo for Sally to issue to Ed. That memo should check off what we believed to be important legal requirements:

  1. Identification of the Critical Element(s) in Ed’s performance plan related to developing accurate reports,
  2. Clarification as to what Sally considers to be the minimal level of performance for Ed to keep from being fired (e.g. “More than three errors during the DP is unacceptable performance and warrants removal”),
  3. Establishment of a period of no more than 30 days for Ed to be given a chance to demonstrate that he can perform acceptably,
  4. Assignments for Ed to accomplish during the DP related to the failed CE,
  5. Weekly meetings in which Sally gives Ed specific feedback as to his errors, followed up with emails confirming the matters discussed, and
  6. Explicit notification that if Ed makes more errors than allowed, Sally will take steps to remove him from his position.

Compared to the expansive, overly burdensome procedures we hear that a lot of advisors would give Sally (e.g., a 90-day PIP), we proudly felt that we had boiled the legal requirements for firing a poor performer down to the statutory minimum.

And, we were wrong. Check out this language from a recent publication by MSPB’s Office of Policy and Evaluation (OPE).  [FELTG Training Director Dan Gephart recently interviewed James Read, the Director of the Office of Policy and Evaluation.] In respect to OPM’s regulation defining how an agency can fire a poor performer, 5 CFR 432.104, OPE notes:

This regulation does not state that an agency must create a formal (or even informal) performance improvement plan. The Board has held that the communications required by OPM’s regulation may occur in a formal performance improvement plan, in counseling sessions, in written instructions, or in any manner calculated to apprise the employee of the requirements against which he is to be measured. [Citing Baker v. DLA 25 MSPR 614 (1985), aff’d 782 F.2d 1579 (Fed. Cir. !986)]

Remedying Unacceptable Employee Performance in the Federal Civil Service, June 18, 2019, p. 14.

Many practitioners and policymakers read into OPM’s regulations that a formal DP is required prior to removing a poor performer. That’s no doubt because the earlier permutations of OPM’s regulations from the ‘80s mandated that a supervisor initiate a “performance improvement period.” Although OPM did away with that formality as the case law developed, it never explicitly said by regulation that a structured DP was not required.

When VA’s law was changed a couple of years ago to make it easier to fire employees (Department of Veterans Affairs Accountability and Whistleblower Protection Act of 2017, 38 USC 323), it became clear that henceforth in the VA, a formal demonstration period was not a necessary prerequisite to a poor performance removal. Many practitioners outside of VA were somewhat jealous of the reduced procedures that had become available to VA managers when dealing with a poor performer.  Well, in consideration of MSPB’s clarification in the recent OPE report, it seems that we have stumbled on a secret like that of Dorothy’s ruby slippers: OPE serves as the good witch of the north and we Munchkins have “always had the power.”

As Glenda told Dorothy, I guess they didn’t tell us earlier because we wouldn’t have believed it; we have to learn it for ourselves.

So now we’ve learned it. And we have the power. FELTG Nation! Click your little ruby-red heels together and go spread the word. Turn up your speakers, prepare for your day to get demonstrably better, and click here: The wicked old PIP-witch “is not only merely dead, it’s really most sincerely dead.” Wiley@FELTG.com

The Presidential Impeachment Inquiry and FELTG Training

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By William Wiley, October 29, 2019

As the inquiry into impeachment continues on Capitol Hill, many talking heads and so-called experts are accusing those running the inquiry of being unfair. We here at FELTG love teaching moments. And the impeachment inquiry arguments provide a great opportunity for us to hammer home some basics about federal workplace investigations.

  • Secret interrogations. A number of media personalities are all bent out of shape that the House Intelligence Committee is questioning witnesses in private rather than in a public forum. Well, that’s the first hour of FELTG’s Workplace Investigations program. [Join us for our next Workplace Investigations Week, which will be held November 4-8 in Washington, DC.] Frankly, you shouldn’t have to attend the training to realize that when you’re investigating possible misconduct involving many witnesses, you don’t want the witnesses getting together and aligning their stories with each other. You want to hear each person’s independent view of events without reliance on what someone else heard or saw. Studies show us that when witnesses are exposed to the testimony of others, subconsciously they often draw details or judgments from that testimony. It’s not necessarily a conscious attempt to mislead. It’s just that we as humans in a neutral setting don’t want to seem out of step with what others are thinking. Were the committee’s investigative sessions open to the public, each witness possibly would have been influenced by the testimony of the previous public witnesses. That would undermine the validity of the investigation process, as we teach in our training classes.
  • Refusal to appear. It has been reported that a number of individuals who were subpoenaed by Congress were ordered by their supervisors not to comply with the subpoenas, to refuse to testify, and/or not produce the requested documents. One talk show expert stated that he would always advise his client to obey his supervisor’s order, or risk being fired. Well, that’s just the opposite of what FELTG teaches in its UnCivil Servant seminar for supervisors. If an employee is ordered to do something illegal, he should refuse to do it. As we sometimes say in class, “We can get you another job a lot more easily than we can get you out of jail.” Obedience to a supervisor’s directive does not shelter the employee from criminal prosecution. MSPB will refuse to uphold a removal for misconduct if it finds that the supervisor’s order was illegal. In addition, the Follow the Rules Act, passed in 2017, amended 5 USC 2302(b)(9) to allow an employee to refuse to follow an order he believes violates a regulation or agency rule – not just a statute.
  • Preliminary conclusions. As the chairman of the House Judiciary Committee walked out of a closed-door session last week, a reporter called out to him, “Do you have enough evidence to impeach yet?” The chairman, wisely, just kept walking without answering. The very LAST thing you want to do when conducting an investigation into possible misconduct is to reach a preliminary conclusion about what the outcome will be. The science is full of studies, as FELTG teaches in its investigations class, that show that simply suggesting a possible conclusion to an investigator before the investigation concludes skews the investigator’s results toward that conclusion. In one famous study, fingerprint experts who were preliminarily told that the prints being studied “probably” belonged to the suspect were 60% more likely to find that the fingerprints did indeed belong to that suspect. The conclusions of an investigation should not be made until all the evidence is in.

With all modesty, this is basic stuff. FELTG prides itself on getting the basics in place and then building up from there. We don’t do a lot of training on Capitol Hill or in CNN/FOX/MSNBC newsrooms, but we’d be happy to present a session. You can’t really reach meaningful conclusions about the hard bits if you don’t understand the fundamentals. Wiley@FELTG.com

FELTG Sets the Record Straight on Whistleblowing

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By Deborah Hopkins and William Wiley, October 8, 2019

We’ve been reading and hearing a lot lately about whistleblowers, most recently about the Ukraine/Biden/Trump situation. We’re not here to discuss the merits of the complaint about President Trump’s conversation with Ukrainian President Zelensky, and we’re not here to discuss politics. We’re here to clarify that the media and numerous folks in Washington have (yet again) gotten a lot of things wrong in talking about this mysterious intelligence community whistleblower.

In discussions about the whistleblower’s motive for making the disclosure, one of the themes that keeps coming out is, “The whistleblower is a partisan.” Well, guess what? Even if that’s true, it’s irrelevant because when it comes to whistleblowing, the motive does not matter.

That’s right, whether a whistleblower makes the public aware of waste, fraud and abuse because he wants to save the world, or whether he does it to get the President impeached, the law protects him anyway, as long as he meets the legal requirements of whistleblowing.

To be protected a whistleblower must disclose:

  • Violation of law, rule, or regulation;
  • Gross mismanagement or gross waste of funds;
  • Substantial and specific danger to public health or safety; or
  • Abuse of authority.

While there is statutory protection and a Presidential Policy Directive (PPD-19) that covers whistleblowing by intelligence community employees, the Whistleblower Protection Act and the Whistleblower Protection Enhancement Act cover a large group of employees in the federal sector non-intelligence communities. That’s what we’ll discuss here today, because these are the statutes that apply to most FELTG readers.  [Editor’s note: House Democrats Ted Lieu (Calif.) and Don Beyer (Va.) recently updated and released a whistleblower guide for federal employees that you may find of interest.]

Let’s start with a little history lesson. Following the implementation of the Civil Service Reform Act (CSRA), a whistleblower’s disclosures were not considered protected if the employee’s “primary motivation” was not for the public good, but rather for was for his own personal motives. See Fiorillo v. Department of Justice, 795 F.2d 1544, 1550 (Fed. Cir. 1986). However, in subsequent years, the Federal Circuit determined it had improperly reached that conclusion because nothing in the CSRA requires an employee’s motives should be considered in determining whether a disclosure is protected. Id.; see also Horton v. Department of the Navy, 66 F.3d 279, 282-283 (Fed. Cir. 1995).

In 1988, Congress decided that a whistleblower’s motivation should not be considered, and that all employees should be encouraged to alert the public of waste, fraud and abuse. “The [Office of Special Counsel], the Board and the courts should not erect barriers to disclosures which will limit the necessary flow of information from employees who have knowledge of government wrongdoing.” S. Rep. No. 413, 100th Cong., 2d Sess. 12-13 (1988). Id.

As we said above, under 5 USC § 2302(b)(8), disclosures of information that the employee making the disclosures “reasonably believes” evidences certain kinds of wrongdoing are protected. The only time bias or motivation might enter the picture is in testing reasonableness of belief in blowing the whistle — and, warning, it’s an uphill battle. While bias and self-interest may be considered in testing the reasonableness of belief, bias alone does not determine that a whistleblower does not have a reasonable belief. LaChance v. White, 174 F.3d at 1381. Personal motivation, whether to save the world, ruin someone’s career, or something in between, does not per se affect reasonableness. Carter v. Army, 62 MSPR 393 (1994).

If “the employee is motivated by a desire to damage others’ reputations,” this fact alone is not dispositive, even though the whistleblower’s motives in making disclosures were to destroy his supervisor “during the course of an internal agency power struggle,” Fickie v. Army, 86 MSPR 525 (2000).

Separately, some in the press made a big issue that the whistleblower disclosed no first-hand information in the complaint, nor any other direct proof of the alleged impropriety that occurred in the President’s July 25 phone call. Again, that’s irrelevant as to whether the individual is a protected whistleblower. A whistleblower need only have a “reasonable belief” in the facts he is disclosing, not actual proof that the facts are as they are being described. In other words, if an individual is told something by a reliable source, and chooses to believe it because it makes sense to him, he is then protected if he discloses the believed facts in a whistleblower complaint. It’s the subsequent investigation of the complaint that is supposed to flesh out the facts based on credible evidence; it’s not up to the whistleblower to prove the allegations.

Some talking heads made an issue out of the belief that the employee is not a whistleblower because the alleged facts do not rise to the level of a crime. Well, federal employees are whistleblowers if they report things other than criminal activity; e.g., a simple abuse of authority or gross mismanagement will suffice to protect the discloser. The commission of a “high crime or misdemeanor” would be relevant to the impeachment process, but not to the status of being a whistleblower.

A lot of guests on talk TV have used harsh words to describe the whistleblower: traitor, spy, partisan hack, deep-state operative, rotten snitch, rat, back stabber, saboteur. In reality, a federal employee who believes that he or she has observed corruption committed by a government official is required by regulation to disclose that belief. A “basic obligation of public service” can be found at 5 CFR Sec. 2635.101

(a) Public service is a public trust. … To ensure that every citizen can have complete confidence in the integrity of the Federal Government, each employee shall respect and adhere to the principles of ethical conduct set forth in this section …

(b) …

(11) Employees shall disclose waste, fraud, abuse, and corruption to appropriate authorities.

Even if the individual personally did not want to disclose what appeared to be corruption being committed by a particular government official, the regulations mandates that a disclosure be made.

What does this all mean? It means Congress has afforded protections to whistleblowers higher than any other kind of protection in the civil service, and as long as the employee has a reasonable belief that the content of the protected disclosure is true, that whistleblower cannot legally be disciplined for making the disclosure – even if his goal was to make his boss look bad, get fired, or worse.

Hopkins@FELTG.com; Wiley@FELTG.com